R.C. Mitter, J.
1. These ten appeals are in ten suits instituted by the plaintiff-appellant, some in the year 192(5 and others in the year 1927 in respect of ten tenancies. Eight other suits instituted by the plaintiff in the year 1930 in respect of eight other tenancies were tried analogously with the said ten suits by the Munsif. In. all these suits the plaintiff claimed additional rent under Section 52 of the Bengal Tenancy Act and claimed the arrears at the old rent together with additional rent for the alleged additional area in the possession of the tenants. In the suits of the year 1930 the Munsif granted his claim for additional rent and there was no further appeal from those decrees. The claim for additional rent made in the first mentioned ten suits was, however, dismissed by the Munsif and his decrees have been affirmed by the Subordinate Judge on appeal.
2. To sustain the claim for additional rent the plaintiff had to prove that the tenants are in possession of lands proved by measurement to be in excess of the area for which rent had been previously paid by them. The areas now in their possession have been found by measurement at the settlement proceedings, made final in the year 1926. The plaintiff to succeed had further to prove that the rent had been previously assessed on the lands of the tenancies on measurement. To prove the same, he tendered in all the suits his rent roll of the year 1292 and counterfoil receipts. Areas of the tenancies are mentioned in the said rent roll and the said areas correspond with the areas mentioned in the counterfoil receipts. He also proved by oral evidence that there was a practice in his estate both in the year 1926 and 1292 of settling lands after measurement.
3. The learned Munsif relying on the counterfoil receipts and the rent roll and believing the plaintiff's case that there was a practice of settling lands after measurement prevalent in 1292, gave the plaintiff decrees for additional rent in the suits instituted in 1930. He held that the plaintiffs were entitled to invoke the presumption contained in Section 52, Clause 6, as amended by Act IV of 1928. In respect of the suits instituted in the years 1926 and 1927 he held that the plaintiff was not entitled to invoice the aid of the said amended sub-section but had to fall back upon the Sub-section as it stood before the amendment of 1928, and on the evidence he held, relying upon the cases of Maharaja Manindra Chandra Nandi v. Kaulat Shaikh : AIR1924Cal374 , that the plaintiff was not entitled to succeed. He further held on the evidence that those holdings had been created long before 1292 and that rent in respect of them had not been assessed or adjusted on measurement in 1292, and that the presumption which was raised in favour of the plaintiff under Sub-section 6 of Section 52 as it stood before the amendment of 1928 did not help him as the presumption did not carry the plaintiff to the time of the creation of the tenancies but was that the areas in the rent roll of 1292 was entered there after measurement.
4. The plaintiff preferred ten appeals to the learned Subordinate Judge. Before the learned Subordinate Judge the defendants in three of the suits which correspond to Second Appeals Nos. 1191, 1200 and 1203 made applications to put in as additional evidence some dakhilas of dates prior to 1292, which did not mention any area; they wanted to use these dakhilas for the purpose of showing that a consolidated rent within specific boundaries had been imposed when the tenancies to which the dakhilas refer, had been created. These dakhilas bear file marks of the Munsif, but there is nothing on the record to show that they had been tendered in evidence before the Munsif and either rejected or not marked as exhibits by in advertance. The application for adducing additional evidence supported by an affidavit was filed on June 23, 1931. The application states simply that the dakhilas had been filed in the Munsifs Court. In Paragraph 2 a statement is made that the defendants Gomastha also spoke about these dakhilas in his evidence; a statement which is not borne out by the evidence of the said Gomastha. The application and the affidavit are discreetly silent as to whether the dakhilas had been tendered in evidence in the trial Court or whether the attention of the Munsif had been drawn to them at any stage of the suit. At the time of the argument the Subordinate Judge received them in evidence but neither in his judgment nor in the order sheet has he given any reason for receiving them in. In my judgment these documents cannot be admitted in evidence either under Clause (a) of Order XLI, Rule 27, of the Code or under Clause (6). There is nothing to show that the Munsif refused to receive them in evidence and there is no inherent lacuna or defect in the evidence as it stood. These dakhilas must accordingly be ruled out: Parsotim Thakur v. Lal Mohan . The learned Subordinate Judge also held that Section 52 Sub-section 6 of the old Act was applicable and not the Sub-section as amended. His view proceeded upon the ground that the new Sub-section cannot be invoked as it came into the statute while the ten suits were pending. In my judgment the learned Subordinate Judge is wrong in this respect. Sub-section 6 merely enacts a rule of evidence, what presumption is to be drawn if certain facts are proved by the landlord. To put it in another way, prima facie, proof of a fact in issue is prescribed therein in a certain manner. The rules accordingly a rule of procedure and the new sub-section would apply to all actions pending or future: Wright v. Hale (1860) 30 L.J. Ex. 40 : 6 H.N. 227 : 6 Jur. (N.S.) 1212 : 3 L.T.(N.S.) 444 : 9 W.R. 157 : 123 R.R. 477, Kimbray v. Draper (1867) 3 Q.B. 160 : 9 B. & S. 80 : 37 L.J.Q.B. 80 : 16 W.R. 539 : 17 L.T. 540, and the cases collected in Graes on Statute Law, 3rd Ed. p. 332, also, Surendra Nath Dey v. Manohar De : AIR1934Cal754 .
5. The difference between the old Sub-section and the new one lies in two respects. Under the old sub-section the landlord had to prove the practice of settling binds on measurement at the time when the area in excess is found out before the institution of the suit: Nilmani Kar v. Raja Sati Prasad 48 C. 556 : 61 Ind. Cas. 82 : A.I.R. 1921 Cal. 397 : 25 C.W.N. 230 : 32 C.L.J. 302(F.B.), and when such a practice is proved by him he gets the presumption that the area had been entered on measurement in his rent roll. I confine myself to the case when the rent roll and counterfoil receipts are produced and not the patta or the kibuliyat. Under the amended sub-section the landlord has to prove the said practice prevalent at the time when the rent roll containing the areas of the holding was prepared, and if he proves the practice he carries the presumption further back, i.e., to the date of the creation of the tenancy, that is to say, the Court has to presume that the tenancy had been created alter measurement. The last mentioned distinction is of importance in the case where the rent roll containing the area which is supported by counterfoil receipts had been prepared at a time later than the time of the creation of the tenancy. The presumption created by the new sub-section is therefore more specific and more to the point'. The tenant can rebut the presumption by showing that the tenancy had been created with a consolidated rent for lands with specific boundaries. This he can show either by producing the grant or evidence contemporaneous with the grant or such other evidence as would lead necessarily to the inference that the rent must have been a consolidated one in the beginning.
6. As I hold that the Sub-section (6) as amended by Act IV of 1928 applies to these ten cases before me, there must be an investigation by the Court of Appeal below of the question as to whether there was a practice in 1292 in the plaintiff's estate of settlement on measurement, and for that purpose there must be a remand unless I hold, as I have been asked to do by the respondents' Advocate, that the plaintiff's claim for additional rent is inadmissible by reason of the decision in' Maharaja Manindra Chandra Nandi's case : AIR1924Cal374 . In my judgment that case has no bearing on the question at issue in these appeals.
7. In that case the landlord claimed additional rent under Section 52 of the Bengal Tenancy Act. To prove the area for which the tenants have been previously paying-rent, he proved only some dakhilas with the areas and rate of rent mentioned on the back thereof. He did not produce any rent roll at all and besides did not prove any practice of settling lands by measurement. He did not base his case on Sub-section (6) of Section 52 at all. In the judgment there is a passing reference to Nilmony Kar's case Prasad 48 C. 556 : 61 Ind. Cas. 82 : A.I.R. 1921 Cal. 397 : 25 C.W.N. 230 : 32 C.L.J. 302(F.B.), which was referred to only to support the proposition that the decision in Gouri Patra v. H.R. Reily 20 C. 579, was still good law, a case which had nothing to do with Sub-section 6, which was added to the Bengal Tenancy Act much later by the two Amending Acts (Act I of 1907 B.C. and Act I of 1908 E.B.A.C.) I hold accordingly Manaraja Manindra Chandra Nandi's case : AIR1924Cal374 , cannot defeat the plaintiff's claim as put forward.
8. The learned Advocates appearing for the respondents resist the remand by urging that the Subordinate Judge has found that the holdings of the ten suits had been created with consolidated rent and that the lands of these tenancies had never been measured
by the plaintiffs in 1292 or at any time before or after by the plaintiffs' pre decessors-in-interest before the acquisition of the ganti interest by the plaintiffs which was a short lime before the year 1292. So far as the first finding, is concerned, the Subordinate Judge based it on the dakhilas marked by him as Exhibits. I have already held that these dakhilas must be ruled out. The said dakhilas as can be gathered relate to the tenancy of one of the suits only, in any view cannot relate to more than three tenancies in suit. How the said dakhilas can support the finding in respect of the other tenancies, it is difficult to perceive. So far as the second finding of the Subordinate Judge is concerned, I would go so far as to hold that it is based on absolutely no evidence; Mr. Chakravarty has placed the evidence before me and I have examined the evidence myself with care. The Subordinate Judge states that he arrives at the said finding on the evidence of the plaintiff's Amin (P.W. No. 2). The said witness is in the employ of the plaintiff for 15 years. He speaks of the practice during the time he is there. Stretching his evidence in favour of the defendant his deposition refers at most to the practice of the plaintiff and not of his predecessors. He 'Says that whenever lands were measured, chittas were prepared and that the entire' mouza was not measured and no chita was prepared for the same. He also deposes that there are no chittas in the plaintiff's sherista of their predecessors' time. That deposition on a fair reading comes at most to this, that the plaintiff never measured the entire mouza since he acquired the ganti. That evidence may lead to the inference that there was no measurement just before, in or after the year 1292. But inasmuch as the presumption of amended Sub-section 6 carries the matter back to the origin of the tenancies which were admittedly created many years before 1292, this evidence is not helpful to the defendants nor does it support the sweeping finding of the Subordinate Judge that there was no measurement at any time before 1292.
9. I accordingly set aside the judgments and decrees of the Subordinate Judge and remand the cases to the lower Appellate Court. If the lower Appellate Court comes to a finding that the plaintiffs has established the practice of settlings lands on measurement in 1292, that is, at the time when the rent roll produced by him was prepared, it will hold that the plaintiff has established a right to get additional rent and in that case it will assess the same. If the Appellate Court comes to the conclusion that the evidence on the record' does not justify a finding as to the existence of such a practice, it will dismiss the plaintiff's claim for additional rent. Costs to abide the result-Leave to appeal under the Letters Patent asked for is refused.